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In re Gary T.

Court of Special Appeals of Maryland

April 6, 2015

IN RE GARY T

Appeal fro the Circuit Court for Prince George's County. Krystal Q. Alves, Judge.

Submitted by: Daniel Kobrin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Submitted by: Jason J. George (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD for Appellee.

Panel: Kehoe Arthur Wilner, Alan M. (Retired, Specially Assigned), JJ.

OPINION

Page 1109

[222 Md.App. 376] Wilner, J.

The Circuit Court for Prince George's County, sitting as a Juvenile Court, found appellant to be delinquent by reason of conduct which, if committed by an adult, would constitute second degree assault. The victim of the assault was A. Fofana.

BACKGROUND

Mr. Fofana was playing basketball at a neighborhood park. He had left some personal belongings, including his cell phone, on a nearby bench and tried to keep an eye on them as he was playing. He observed three individuals, including appellant and one Cameron P., standing near the bench watching the game. At some point, Fofana noticed that his cell phone was gone and saw appellant and Cameron walking away. He caught up with them and demanded that his phone be returned. Fofana claimed that, while he was talking with Cameron, appellant punched him in the head from behind, leaving him bloody and dazed, and that appellant and Cameron then left. A photograph was admitted showing injury to the right side of Fofana's face.

That much is essentially undisputed. Appellant's defense was one of self-defense. He testified that Fofana was the aggressor -- that before any blows were struck, Fofana rifled through appellant's pockets and then threw the first punch, to which he responded. The court believed Fofana, largely because appellant's version was inconsistent with the nature of Fofana's injury. The court noted that appellant was right-handed and that, if appellant had hit Fofana while the two were facing each other, as he claimed, the injury

Page 1110

would have been to the left side of Fofana's face. The blow had to come from the rear, as Fofana testified. The court also doubted [222 Md.App. 377] that appellant would have permitted Fofana to go through his pockets.

The sole issue in this appeal arises from appellant's attempt, during cross-examination of Fofana, to impeach Fofana's credibility by showing that, in November 2013 -- some four months after the incident and four months before trial -- Fofana had been convicted on a guilty plea of conspiracy to distribute marijuana. Relying largely on this Court's decision in Wallach v. Board of Education, 99 Md.App. 386, 637 A.2d 859 (1994), the court concluded that conspiracy to distribute marijuana was not an impeachable offense. The court also expressed doubt that, based on the evidence admitted to that point, " it's going to be that probative." On those bases, the court sustained an objection to the proffered evidence.

DISCUSSION

Appellant acknowledges the Wallach decision but claims that it was at least tacitly overruled by the Court of Appeals in State v. Giddens, 335 Md. 205, 642 A.2d 870 (1994) and that it is inconsistent with case law elsewhere in the country. The State's response is that (1) Wallach was not overruled in Giddens, (2) the trial court also based its decision on its finding that the probative value of the evidence would not outweigh the prejudice to Fofana from its admission, and (3) any error was harmless because the ultimate issue of appellant's " guilt" did not turn on Fofana's credibility.

Although Wallach and Giddens are the most relevant cases, they did not, like Athena, spring live (and fully armored) from the head of Zeus; there were precursors that informed the analysis undertaken in those cases. Wallach arose from a collision between a motorcycle, driven by Wallach, and a school bus. At least one issue was whether Wallach, the plaintiff, was negligent. During trial, in an effort to impeach Wallach's credibility as a witness, the defendant sought to establish that Wallach had been convicted of conspiracy to distribute marijuana. The trial court allowed the evidence, and ultimately the jury found for the defendant. In the [222 Md.App. 378] appeal, Wallach claimed that ...


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